UK: CPO: Powers, Procedures And Pitfalls

Compulsory purchase powers can be viewed as a sensible tool
enabling certain bodies to carry out their statutory duties
efficiently. An alternative view is that they are a set of
draconian powers implemented to the detriment of landowners,
interfering with their fundamental rights to property.

This first article in a series of two looks at the procedures
associated with these controversial powers and the potential
pitfalls even where no objections are voiced by interested parties.
The second article will look at what happens when objections are
received to the making of an order and how to deal with individuals
or action groups who are obstructing the process.

What, why and when

Compulsory purchase powers enable certain bodies that need to
acquire land (or rights over it) to do so without the consent of
the owner. Many bodies with statutory powers have compulsory
acquisition powers prescribed by Acts of Parliament for the
purposes of enabling functions that Parliament deems to be in the
public interest.

The greatest users of compulsory purchase powers are local
authorities; other statutory bodies with such powers include the
Highways Agency, government departments, infrastructure companies,
and notably, major utilities companies.

A utility company that intends to, say, lay pipelines or install
cables underground will likely attempt to acquire the necessary
rights by reaching an agreement with the landowner and other
interested parties. It may, however, consider using its compulsory
purchase powers where landowners are obstructive, cannot be
identified, or are simply not engaging with the process.

The utility company may also consider starting the compulsory
purchase procedure even while meaningful negotiations are ongoing.
This will give it peace of mind by protecting the project
timetable. In the event that negotiations are not fruitful, it will
be able to fall back on the ongoing compulsory purchase
procedure.

The procedure

What land is involved?

The first stage of the compulsory purchase procedure is for the
acquiring authority to determine the land to be compulsorily
purchased, both in terms of the physical extent of the land and the
rights that it requires in it. This may not be outright ownership;
it might need instead new rights over the land, such as a right of
way or the right to lay a pipeline.

Whatever the extent of the land and the interests sought, the
acquiring authority will have to demonstrate that there is proper
justification to support its compulsory acquisition. The powers to
acquire compulsorily will be limited to the physical extent and the
interests and rights included and described in the confirmed
compulsory purchase order (CPO). Therefore, it is important that
the acquiring authority is precise and detailed as to the boundary
of the land and the rights it seeks.

Information gathering

The acquiring authority should then conduct an information
gathering exercise to determine interests that will be affected by
the exercise of its powers. This will give an initial indication as
to the cost of the acquisition as it will be able to see the number
of land interests affected, the nature of those interests, and,
crucially, whether land is Crown land or other special categories
of land that may require further special procedures. This may
prompt the acquiring authority to change the boundaries of the land
in which rights are sought.

Various registers and records should be consulted at this stage,
including the Land Registry, council tax records, planning records,
rating records and other registers held by the local authority. An
inspection of the site itself should also take place.

Approval and referencing

The acquiring authority should now have the information it needs
to proceed formally. If it is a local authority, this is done by a
resolution of the council, unless delegated otherwise. A company
will probably require a board resolution.

The acquiring authority will then be in a position to conduct a
full referencing exercise. Using the information gathered at the
preliminary stage, it will further collect and record detailed
information on land ownership and occupation as necessary for
making the CPO. This stage is one of the more crucial as it will
inform the whole of the process from beginning to end.

If the acquiring authority wishes, it can send out statutory
notices requiring the receiver to give information as to the
ownership and occupation of the land. Besides its purpose as an
information gathering tool, notices can be a useful prompt for
landowners to engage with the process and hopefully be minded to
settle the matter by agreement.

Drafting and making the order

The CPO and a statement of reasons are then drafted using the
information gathered. The schedule to the order is compiled with
details of the land interests affected, and the land and rights to
be acquired are described in the order by reference to an
accompanying map.

The statement of reasons will support the application to the
relevant confirming authority by setting out the justifications for
making the order. Among other particulars, such as the
deliverability of the project and the planning position of the
site, the statement should give details of any special
considerations affecting the land, including listed buildings or
conservation areas.

Final stages

Once the order is made by the acquiring authority, notices are
published in the local newspaper, affixed on the land and served on
persons with qualifying land interests. Qualifying persons are also
served with the statement of reasons. Copies of the CPO and the
order map are deposited locally for inspection, often in a local
library.

The order is then submitted. After a period of 21 days, if no
objections to the making of the order have been made, the relevant
confirming authority may choose to confirm the order. Further
notices are then placed, served, and affixed. A period of six weeks
is left to pass to allow for any applications to the High Court by
aggrieved persons querying the validity of the order.

It is only at this point that the acquiring authority will
generally look to securing possession and title to the land; a
process that in itself can take some time.

Quirks, difficulties and pitfalls

Special category land

Any special category land should have been identified during the
referencing exercise and noted in the schedule to the order and the
statement of reasons. These types of land are afforded protection
against being compulsorily purchased. They include: land owned by
the National Trust; land owned by a local authority; land owned by
a statutory undertaker for the purposes of its undertaking; and
land forming part of a common, open space, fuel or field garden
allotment. "Open space" is defined very widely as land
used for the purposes of public recreation.

The protection is provided by affording the landowners
additional rights to resist the exercise of the acquiring
authority's powers. Where the land is owned by the National
Trust and it objects to the order, then the order will be subject
to special parliamentary procedure. This is likewise the case where
land belongs to a local authority or statutory undertaker, unless
the acquiring authority is also a local authority or statutory
undertaker.

Where the land forms part of a common, open space, fuel or field
garden allotment, the appropriate minister must consider the
application and may issue a certificate. If the minister does not
issue the certificate, special parliamentary procedure will
apply.

If special parliamentary procedure applies, a public inquiry is
held in the same way as when an objection is made. The order must
then be laid before Parliament by the confirming minister.

Notices

At various points in the compulsory purchase procedure, notices
must be published, served on qualifying persons and affixed to the
land. If this is not done in accordance with statute, the
confirming authority may not confirm the order or, if confirmed,
the order could be challenged at the High Court. It is therefore
extremely important that the referencing stage has identified all
interested parties as may reasonably be expected and that the
strict rules of service are complied with.

Where the acquiring authority has not identified who the
landowners are, particular care must be taken in the publication of
the notices and the affixing of notices to the land. Once the
authority is in a position to commence securing title, it will be
required to show that reasonable efforts have been made to identify
and notify any absent or unknown parties.

It can be seen therefore that despite appearing only a
preliminary stage of the process, the information gathering and
referencing exercise is absolutely key to ensuring that the CPO
does not encounter difficulties later down the line.

Why this matters

Compulsory purchase is a draconian right whereby land can be
taken away from a landowner against their will. The process is
widely used by public or statutory bodies that need to acquire land
or rights over it. The procedures surrounding compulsory purchase
are complex; rightly so, as the result of the process is to take
land ownership or rights away from someone. Anyone reviewing the
procedures involved in exercising compulsory purchase powers will
realise that there are a number of hoops to jump through.

Even where there are no objections raised in respect of a
proposed CPO, it still involves a very expensive and lengthy
process before the acquiring authority can secure the land or the
rights it needs. If the risk of negotiations falling through is
apparent, or the landowners cannot be identified, it is advisable
to commence the process as soon as practicable; it will be some
time before entry onto the land is possible.

Commencing the information gathering and referencing stages of
the procedure can put the landowner on notice, which itself is a
useful tool for encouraging parties to come to the negotiating
table. The relevant body should not, however, be complacent in its
negotiations. This is not only because of the cost and time of
running a full compulsory acquisition process, but also, as will be
explored in the second of these articles, the confirming authority
will want to see that all reasonable efforts have been made to
secure the necessary rights outside of the compulsory purchase
procedure.

It is clear that compulsory purchase is not a panacea or an easy
fix. It is often simpler, faster and cheaper to reach an agreement
with the landowner. While providing a safety net to protect a
project timetable and useful as a means of moving negotiations
forward, it should always be a process run in parallel to
negotiating a private agreement.

It is well established that a landlord can oppose renewal of a business lease if he demonstrates settled intention to demolish, reconstruct or carry out substantial construction works to the premises or a substantial part ...

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